Reply in Support of a Motion for Summary Judgement

Note: I was tasked with writing this Motion for Summary Judgement on behalf of defendant School Officials in a hypothetical campus free speech case.  This brief in no way reflects my personal views concerning campus free speech and should be read by the review committee only to evaluate my legal writing and analysis. 

 

 

 

 

 

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF ARIZONA

 

 

___________________________________

CAROL KRAMPER, as parent, natural guardian, and next friend of	:	No. CIV-D-05-48   Reply in Support of a Motion for Summary Judgement
J.K., a minor,	:
	:
	:
Plaintiff,	:
	:
vs.	:
	:
PAUL DAWSON, PRISCILLA	:
MARTINEZ, PETER DENHAUS, et al.                                           Defendants	:

___________________________________:

 

 

 

 

 

                                                                                                          

 

                                                                                                    Austin Cromack

__________________________________________

                                                                       

 

 

 

 

MEMORANDUM OF LAW OF PAUL DAWSON, ET AL. IN SUPPORT OF DEFENDANT’S MOTION FOR SUMMARY JUDGMENT

 

1. INTRODUCTION

            This memorandum of law is filed on behalf of defendants Paul Dawson, et al. (hereinafter the School Officials) in support of a motion for summary judgement.  Plaintiff Jade Kramper, an eighth-grader at Sun Village Middle School at the time these events transpired, alleges her free speech rights were violated by the School Officials’ disciplinary response to her online threats concerning the slitting of her teacher’s throat.  Since Ms. Kramper’s speech began to invoke constant disruption in the classroom, the School Officials had no other choice but to limit Ms. Kramper’s speech due to their obligation to maintain safety and control of the learning environment.  For reasons set below, summary judgement must be granted in favor of the School Officials and the case be dismissed.

The gravamen of this case is the School Officials’ duty to facilitate a proper learning environment in relation to Ms. Kramper’s ability to make online threats towards her teacher.  Ms. Kramper’s claim must fail since the School Officials’ response to Ms. Kramper’s online speech was proper and did not violate her right to free speech.  In addition, Ms. Kramper’s language was highly disruptive to the educational goals of the school, and the school had no choice but to intervene.  Accordingly, the School Officials rightfully limited Ms. Kramper’s online speech, and the motion for summary judgement must be granted.

1. STATEMENT OF FACTS
2. Kramper has a History of Concerning Speech and Conduct

When the Principal of Sun Village Middle School, Penelope Lee, summoned Ms. Kramper to her office regarding her online speech, it was not the first time the 14-year-old had been called into her office.  (Kramper Dep. at 12:17, Jan. 3, 2018.)  Prior to her eighth-grade year, Ms. Kramper had taken numerous trips to the principal’s office as a result of her unacceptable behavior. (Id. at 13:3.)  Ms. Kramper openly confessed to being sent to the principal’s office on several occasions, most recently as a result of fighting another student and using profane language.   (Id. at 13:3,8.)   Ms. Kramper’s history of poor conduct, attitude, profanity, and anger were so prevalent that they drew significant concern from Principal Lee who had navigated hundreds of situations throughout her career.  (Lee Dep. at 5:18-20, Jan. 3, 2018.)  Principal Lee was even so amply concerned by Ms. Kramper’s anger issues that she implored Ms. Kramper’s mother to provide her with counseling.  (Id. at 6:18-20.)  Principal Lee, however, was not alone in her unease towards Ms. Kramper.

Ms. Kramper’s conduct also had the constant concern of her teacher, Ms. Charlene Martin.  (Martin Dep. at 9:13, Jan. 3, 2018.)  Ms. Martin, the subject of Ms. Kramper’s online threats, characterized Ms. Kramper as suspicious, rude, lazy, and constantly falling asleep in class.  (Id. at 9:10, 10:6.)  Ms. Martin was so unsettled with Ms. Kramper’s questionable demeanor towards her that she frequently believed that Ms. Kramper was up to no good and “knew what [Ms. Martin] did not”.  (Id. at 10:5-6.)  In fact, even Ms. Kramper did not believe herself to be a good student.  (Kramper Dep. at 11:16.)  Additionally, Ms. Kramper voiced her hatred for both Ms. Martin and her class on multiple occasions.  (Id. at 11:18, 12:8.)  So evident was Ms. Kramper’s poor attitude that it even invited the concern of the court reporter who was astonished by her use of aggressive and offensive language during her deposition.  (Id. at 13:19-20.)  Ultimately, Ms. Kramper’s poor conduct and speech were well established in her history as a student.

1. The School Officials Enacted an Anti-Bullying Policy to Limit Offensive Speech that Interferes with Educational Objectives

In January 2009, nearly nine years before the events in this case occurred, the Mariposa County School District did its due diligence to adopt an anti-bullying policy.  (Board of Educ. Statement of Pol’y, page 4, January 2009.)  This policy was adopted with the purpose of enabling the School Officials to maintain a safe and effective learning environment; the policy expressly prohibits offensive and disruptive student speech that insults or demeans a teacher in any way that provokes a substantial disruption with the operation of the school.  (Id. at 1.)  Seeking also to grow maturity in their students, the School Officials understood that without adopting this policy, it would be increasingly difficult for their students to accept responsibility for their behavior including the consequences that behavior may bring.  (Id. at 2.)

By January 2015, nearly 80% of children had access to computers at home.[1]  As access to the internet increased, so did the problem of cyber-bullying.[2]  For this reason, the School Officials saw the necessity to amend the policy to include electronic communication.  (Lee Dep. at 3:13.)  Spearheading this effort was Principal Lee who throughout her career and during her time at Sun Village Middle School had repeatedly seen the devastating effects electronic speech can have on both students and teachers alike.  (Id. at 1:20, 2:7.)   Principal Lee was perturbed with the effects that online bullying could have on the numerous students and teachers she was responsible for.  (Id. at 3:8.)  This lead Principal Lee to proactively assist the district in amending the policy to explicitly preclude electronic communication that has a substantial impact on the educational environment regardless of where in relation to the school this speech takes place.  (Board of Educ. Statement of Pol’y, at 1; Lee Dep. at 3:13.)

When considering when to enforce the policy and what conduct invokes suspension or expulsion, the School Officials look at a number of factors including the maturity of the parties involved, the levels of harm, the nature of the behavior, the past incidences or continuing patterns of behavior, the relationship between the parties involved, and the context in which the alleged incidents occurred.  (Board of Educ. Statement of Pol’y, at 3-4, emphasis added.)  Should any indecent arise, the policy explicitly requires faculty to report a potential violation.  (Id. at 3.)

Ms. Kramper, along with every student at Sun Village Middle School, is aware of the anti-bullying policy and its amendment concerning online speech.  Every year, the School Officials provide notice to both students and parents concerning the policy’s requirements as well as the individual rights students possess.  (Id. at 2.)  

1. Kramper’s Online Speech Violated the Anti-Bullying Policy

In March 2017, Ms. Kramper violated the school’s policy when she threatened Ms. Martin on her personal blog.  (Martin Dep. at 6:14-15.)  Under the username KoolAzzKid, Ms. Kramper began to converse with classmates about how much they hated both Ms. Martin and her class.  (Lee Dep. at 5:6-7.)  However, the rather innocent banter quickly progressed into much more serious language when one student by the username of CaptainWild wrote, “I hate [Ms. Martin’s] class…she looks like a scrawny chicken with that long neck.”  (Id. at 4:18-19.)  Without indicating she was joking, Ms. Kramper stated, “[Y]eah, she does have a chicken neck – someone oughta slit her neck like a chicken’s – that would solve all our problems with her boring [explicative] class!”  (Id. at 4:21-23.)  Ms. Kramper confessed to the School Officials this was her website, her username, and her speech.  (Id. at 5:6-7.)

In the weeks after Ms. Kramper’s online threats were made, Ms. Kramper and other students continued the dialogue concerning Ms. Martin resembling a chicken in classroom by clucking and pecking behind Ms. Martin’s back while she attempted to teach.  (Id. at 8:22.)  Not only did this conduct occur before, during, and after class, its severity magnified to the point that Ms. Martin resorted to reprimanding these disruptions in attempts to maintain control of her classroom.  (Id. at 8:14.)  By May of 2017, Ms. Martin was without ability to control her classroom learning environment due to this conduct.  Ultimately, Ms. Martin inquired of a student to identify the cause of the disruptions.  Accessing Ms. Kramper’s webpage from campus, a student revealed the source of the disruptions by showing Ms. Martin her online comments concerning the slitting of her neck.  (Id. at 9:3.)  In tears, Ms. Martin immediately informed Principal Lee of the comments, both online and in the classroom.  (Lee Dep. at 3:19.)  After accessing Ms. Kramper’s website and online comments from her office, Principal Lee summoned Ms. Kramper into her office where Ms. Kramper angrily admitted that the threatening comments were her own.  (Id. at 5:6-7.)  Principal Lee, invoking the student policy, notified Ms. Kramper’s mother of the threatening language, suspended Ms. Kramper for three days and required Ms. Kramper to remove the online comments before returning to school.  (Lee Dep. at 6:15-17.)

In the end, the Mariposa County School District board sent a letter to Ms. Kramper’s mother approving and affirming Principal Lee’s discipline of Ms. Kramper for her speech.  Compl. 4:13 (Nov. 15, 2017).

1. Kramper’s Speech Substantially Disrupted the School’s Educational Environment

From 2012-2016 alone, more than 2.5 million violent victimizations occurred on school campuses.[3]  School administrations must take seriously the obligation to maintain a safe and productive learning environment by limiting threatening speech which can distract from safety and productivity.  When Ms. Kramper’s threatening speech carried over into the classroom, Ms. Martin began to see a dramatic shift in her ability to teach.  (Martin Dep. at 8:22.)  What began was an onslaught of disruption in Ms. Martin’s class for several weeks.  (Id. at 8:21.)  This disruption became so debilitating to the learning process that Ms. Martin reported it to Principal Lee.  (Id. at 7:9.)  Ms. Martin witnessed roughly a third of her students, including Ms. Kramper, make repeated gestures resembling a chicken – clucking, pecking, strange head gestures – before, during and after class.  (Id. at 8:6-9.)  Ms. Martin testified her thirty student classroom required relentless oral reprimand.  (Id. at 8:18; 9:19.)

Finally, when Ms. Martin discovered the origin of the speech was Ms. Kramper’s online post, she realized the conduct she previously excused for being silly and annoying classroom behavior was actually a very serious threat to her well-being.  (Id. at 8:10-11).  The effects of Ms. Kramper’s speech were now apparent – not only was Ms. Martin’s classroom significantly impacted by numerous students disrupting the educational process, Ms. Martin herself was also severely affected.

One in ten teachers are threatened violence by their students,[4] and the effects of such threats have a lasting adverse impact on the attacked teacher’s ability to perform in the classroom.[5]  Ms. Martin had been teaching at Sun Village Middle School for 10 years and had experienced multiple occasions where her students were disruptive.  (Id. at 7:22.)  Although Ms. Martin explained that middle school students typically do silly things, Ms. Kramper’s speech and the result of which grossly superseded the conduct Ms. Martin considered to be silly.  (Id. at 9:22-23.)  

Upon discovering Ms. Kramper’s comments, Ms. Martin immediately broke down in tears, ran to Principal Lee’s office and slapped the paper on her desk.  (Id. at 4:3.)  Principal Lee’s attempts to console Ms. Martin were ineffective; Ms. Martin was in emotional turmoil.  (Lee Dep. at 5:24; 6:1.)  The effects of Ms. Kramper’s speech required Ms. Martin to take an entire day off of school in order to “get her head together” before returning to class.  (Martin Dep. at 10:20.)

Ms. Martin’s repeated suspicions of Ms. Kramper were ultimately realized.  Although Ms. Kramper said she was just “bitching” about class and did not intend to threaten Ms. Martin, her language was clearly understood as a threat by Principal Lee.  (See Kramper Dep. at 12:11; Lee Dep. at 6:13-14.)  Beyond being threatened, Ms. Martin was humiliated, demeaned and insulted by Ms. Kramper’s comments.  (Martin Dep. at 9:6.)  

Additionally, Ms. Martin felt alienated in her classroom and explained how it is not “every day you read someone thinks your neck ought to be slit like a chicken’s.”  (Id. at 10:13-15).  Even when Ms. Kramper returned to Ms. Martin’s class after serving her suspension, Ms. Martin confessed she was “was really, really uncomfortable,” as were all of the other students.  (Id. at 11:1.)  Ms. Martin could not wait for the school year to be up so that Ms. Kramper would be out of her class and the unbearable discomfort would end.  (Id. at 11:5-6).  Ms. Kramper’s speech substantially impacted the learning environment in Ms. Martin’s class both before and after it existed online, and the quality of learning was severely impacted as a result.

1. ARGUMENT

Defendants’ motion for summary judgement must be granted for two reasons.  First, Tinker applies to Ms. Kramper’s online speech, and second, Ms. Kramper’s speech was at a minimum a foreseeable substantial disruption to the learning environment.  The School Officials are entitled to summary judgment since there exists no genuine dispute of any material fact as to whether Tinker applies to Ms. Kramper’s speech and whether that speech was a substantial disruption.  Fed. R. Civ. P. 56(a).  A genuine dispute of fact to allow Ms. Kramper to overcome summary judgement would only exist if the evidence is sufficient for reasonable minds to side in her favor.  Willis v. Cleco Corp., 749 F.3d 314, 317 (5th Cir. 2014).  Such evidence is not present in the current case.  Ms. Kramper does not possess any supporting evidence already in the record that was overlooked that would allow her to overcome a motion for summary judgement.  Celotex Corp. v. Catrett, 477 U.S. 317, 332 (1986).  Furthermore, while the record will be viewed in a light most favorable to Ms. Kramper, she remains unable to survive a motion for summary judgement.  L.J.S. v. State Ethics Comm'n, 744 A.2d 798 (Pa. Commw. 2000).  Therefore, defendants’ motion for summary judgement must be granted.

The United States Constitution establishes freedom of speech under the First Amendment.  U.S. Const. amend. I, cl. I.[6]  While courts have determined free speech applies to students, student speech is not coextensive with those of adults.  Tinker v. Des Moines Indep. Cmty. Sch. Dist., 393 U.S. 503, 505-06 (1969).  This differentiation is necessary in light of the duty that schools have to maintain a balance between protecting the safety and well-being of their students while simultaneously respecting those same students' constitutional rights of expression.  LaVine v. Blaine Sch. Dist., 257 F.3d 981, 987 (9th Cir. 2001).  Further, where a school’s educational mission conflicts with student expression, courts recognize the dire need for regulation of that speech where it would interfere with the school's work and discipline.  Tinker, 393 U.S. at 513.[7]

The Supreme Court’s decision in Tinker established that schools had the authority to restrict student speech that 1) occurs on campus, and 2) reasonably leads school officials to forecast substantial disruption of school activities or where the speech collides with the rights of other students to be “secure and to be let alone.'"[8]  Id. at 514.  As set forth more fully below, courts have adopted various approaches to determine whether student speech occurs on-campus or off-campus and whether such speech surmounts to a foreseeable substantial disruption.  Therefore, summary judgement must be granted in favor of defendants since Tinker applies to Ms. Kramper’s online speech and her speech constituted at least a foreseeable substantial disruption to the school’s educational environment.

 

 

1. Tinker Applies to Ms. Kramper’s Online Speech

Ms. Kramper’s online speech applies under Tinker even though her speech occurred off-campus.  Tinker allows schools to regulate on-campus speech; however, this rule was created before the current era of electronic communication that considerably interferes with the school environment from beyond school property.  Today, though the location of the speech can make a difference, it does not mean that all off-campus speech is beyond the reach of school officials.  Wynar v. Douglas Cty. Sch. Dist., 728 F.3d 1062, 1068 (9th Cir. 2013).  In furtherance of this, courts from various circuits have adopted several approaches to limit off-campus student speech as if it was on-campus in order to protect the learning environment.  These approaches include the nexus approach, the foreseeability approach, and the identifiable threat approach.[9]  Under each of these three approaches, Tinker applies to Ms. Kramper’s online speech; therefore, the School Officials responsibly limited Ms. Kramper’s online speech and summary judgement must be granted in favor of defendants.

1. There Exists a Sufficient Nexus Between Ms. Kramper’s Speech and School Activities for Tinker to Apply

Under the nexus approach, Tinker applies to Ms. Kramper’s online speech since there exists a sufficient nexus between Ms. Kramper’s speech and the school environment.  Where a sufficient nexus exists between the off-campus speech and the learning environment, courts apply Tinker as if the speech occurred on campus.  J.S. v. Bethlehem Area Sch. Dist., 807 A.2d 847, 865 (2002).  A sufficient nexus exists where a student directs off-campus speech at school personnel and where the speech is brought on campus.  Id.  See, e.g. S.J.W. ex rel. Wilson v. Lee's Summit R-7 Sch. Dist., 696 F.3d 771, 773 (8th Cir. 2012) (finding Tinker applies to the students' off-campus speech that targets the school).  See also, Kowalski v. Berkeley Cty. Sch., 652 F.3d 565, 573 (4th Cir. 2011) (holding a nexus existed where off-campus speech was directed at persons in school and was acted upon by students).   Further, a sufficient nexus exists where student online speech directly conflicts with the interests of the school’s well-being.  Id.  Lastly, a sufficient nexus exists where the off-campus speech involves only students.  See, e.g. Wynar, 728 F.3d at 1069 (holding the nexus between the school and the speech could not have been more direct given the involvement of students).

Tinker applies since Ms. Kramper’s online speech created a sufficient nexus with the school when she directed her speech at Ms. Martin.  In Bethlehem, an eighth-grade plaintiff used his own public website to make derogatory, profane, offensive, and threatening comments about his teacher.  Bethlehem, 807 A.2d at 851.  Under a webpage titled, “Why [the Teacher] Should Die,” the student directly degraded the teacher’s physical attributes and made offensive comments about her.  Id.  The student solicited money from other students to hire a hitman to kill the teacher because the teacher “should die.”  Id.  The student also provided a picture showing a depiction of the teacher’s severed head.  Id.  Other students participated in the conversation online and further accessed the website from school.  Id.  Soon enough, the school officials became aware, proper discipline was administered and the student was expelled.  Id.  The court held that even though the website was created off-campus, its connection to the school established a sufficient nexus for Tinker to apply since the speech was aimed at a school official and was brought onto school campus.  Id.  Since Tinker applied to this student’s online speech under the nexus approach, the court held the school officials were justified in limiting the student’s speech.  Id at 868-69.

Like the plaintiff in Bethlehem, Ms. Kramper’s speech is directly aimed at her teacher, Ms. Martin.  Mimicking the plaintiff in Bethlehem, Ms. Kramper utilized her own personal website to make derogatory, profane, offensive, and threatening comments about Ms. Martin.  Ms. Kramper did so by similarly highlighting Ms. Martin’s physique and making offensive comments about her neck looking like a chicken’s.  Ms. Kramper similarly directed her speech at Ms. Martin when she stated her neck should be slit and that she should die.  This parallels the plaintiff in Bethlehem who created a picture of his decapitated teacher and also advocated for the death of the teacher.  Further, just as the students in Bethlehem brought the speech to campus, Ms. Kramper and her friends did the same by making gestures in class to mock Ms. Martin.  Ms. Martin herself was made aware of the speech by a student who accessed the website from campus, and both Ms. Martin and Principal Lee accessed Ms. Kramper’s online comments from a school computer.  

Similarly, this court should find that although Ms. Kramper’s website was created off campus, its nexus to the school is satisfied since the speech was aimed at Ms. Martin and was brought onto school campus.  Therefore, since the nexus approach is satisfied, this court should find that Tinker applied just as the court did in Bethlehem.

2. Tinker Applies Since It Is Foreseeable That Ms. Kramper’s Speech Would Reach Campus

Under the foreseeability approach, Tinker applies to Ms. Kramper’s online speech since it was entirely foreseeable that Ms. Kramper’s speech would reach campus.  Tinker applies to speech under the foreseeability approach where it is reasonably foreseeable that the speech would come to the attention of school officials.  D.J.M. ex rel. D.M. v. Hannibal Pub. Sch. Dist. No. 60, 647 F.3d 754, 766 (8th Cir. 2011).[10]  Further, the foreseeability approach is satisfied when the off-campus speech would foreseeably reach school property.  Wisniewski v. Bd. of Educ. of Weedsport Cent. Sch. Dist., 494 F.3d 34, 39 (2d Cir. 2007).  Courts have also found the foreseeability approach to be met where speech would be discussed by students on campus.  See, e.g. C.R. v. Eugene Sch. Dist. 4J, 835 F.3d 1142, 1151 (9th Cir. 2016), cert. denied, 137 S. Ct. 2117 (2017) (expecting students to discuss the off-campus expression on-campus, the school could reasonably foresee the effects of the speech would spill over into the school environment).  But see, Burge v. Colton Sch. Dist. 53, 100 F. Supp. 3d 1057, 1066 (D. Or. 2015) (court found that it was not foreseeable the speech would reach campus when the student quickly removed the online speech because he did not intend for the speech to reach campus).

            Ms. Kramper’s speech satisfies the foreseeability approach since it is entirely foreseeable that Ms. Kramper’s speech would both reach campus and come to the attention of faculty.  In Wisniewski, a middle school student used his home computer to message fifteen people, including some classmates.  Wisniewski, 494 F.3d at 36.  The message said, “Kill Mr. Vandermolen,” and contained a crude drawing of a gun firing at the teacher’s head.  Id.  This message was visible by students for three weeks.  Id.  The court held that the foreseeability approach was satisfied since it was extensively distributed among the students.  Id at 39.  Furthermore, the court highlighted that the speech being visible for three weeks satisfied the foreseeability approach because it was highly foreseeable that the message would be made known to school officials, if not “inevitable,” because of the many participants.  Id. at 40.  With the foreseeability approach satisfied, the court applied Tinker and upheld the limitation of the student’s speech.  Id.

            Ms. Kramper’s conduct, like the plaintiff in Wisniewski, satisfied the foreseeability approach.  It is with the very same offensive speech that the drawing of the student in Wisniewski winks in approval at Ms. Kramper’s remarks about Ms. Martin’s neck being slit like a chicken’s.  Copying the plaintiff in Wisniewski, Ms. Kramper also used her home computer to make similar offensive comments about her teacher.  The “extensive distribution” of the speech that the court found in Wisniewski is realized in the present case where roughly ten students in Ms. Martin’s class were involved, bringing it to school in the form of clucking and pecking.  Further, Ms. Kramper’s facilitated antics significantly surpassed the three-week window the court emphasized in Wisniewski to satisfy the foreseeability approach.  Like the court held in Wisniewski, it was nearly inevitable that Ms. Kramper’s speech would come to the attention of the School Officials.  For these reasons, this court should find that Tinker applies since the foreseeability approach is satisfied in the same degree as it was in Wisniewski.

3. Tinker Applies Since Ms. Kramper’s Speech Constituted an Identifiable Threat to Mrs. Martin

Since Ms. Kramper’s speech threating the slitting of Ms. Martin’s throat reasonably satisfies the identifiable threat approach, Tinker applies.  When faced with an identifiable threat of school violence, schools may take action against off-campus speech.  Wynar, 728 F.3d at 1069.[11]  An identifiable threat exists if a reasonable person in the student’s position could interpret the speech to be a serious expression of an intent to inflict harm.[12]  Bethlehem, 807 A.2d at 859.  See id at 859-60 (student’s online attempts to raise money to hire a hitman to kill a teacher because she should die did not rise to the level of a “true threat”).  Courts do not disqualify speech as threatening simply because a student claims to have said it in jest.  See, Lovell v. Poway School District, 90 F.3d 367 (9th Cir. 1996) (speech deemed a threat even though student claimed it was a figure of speech).[13]  Schools also consider where a victim feels intimidated and unsafe to satisfy the identifiable threat approach.  Bell v. Itawamba Cnty. Sch. Bd., 799 F.3d 379, 396 (5^th Cir. 2015).

Tinker applies since Ms. Kramper’s threatening speech towards Ms. Martin satisfies the identifiable threat approach.  In Bell, a student created a rap video that directed threatening and intimidating language at two teachers by saying the teachers should be assaulted and ultimately shot.  Id. at 384-85.  The student intentionally uploaded this rap to his public profile where anyone could listen to it.  Id. at 385.  Upon listening to the speech, the teachers involved claimed it adversely affected their ability to teach.  Id. at 388.  One teacher took the threats seriously and confessed that the comments made him uneasy, intimidated, and scared.  Id.  The student attempted to circumvent the seriousness of the threats by claiming he was only "foreshadowing something that might happen.”  Id. at 386.  The court granted summary judgement in favor of the school, finding Tinker applied under the identifiable threat approach since a person could reasonably find the student’s speech constituted a threat.  Id. at 387.

Tinker applies since Ms. Kramper’s speech satisfies the identifiable threat approach like the student’s speech in Bell did.  While Ms. Kramper did not create a lengthy rap video to threaten her teacher, her “lyrics’ are illustrated rather in her metaphor about Ms. Martin’s neck being slit like a chicken’s.  Ms. Kramper used her public website to threaten Ms. Martin where anyone, including Ms. Martin, could effortlessly view it, just like the plaintiff in Bell.  Mirroring the one teacher in Bell, the threats made Ms. Martin extremely uncomfortable, intimidated, and uneasy.  Further, Ms. Martin’s ability to teach was inhibited just as the teacher in Bell.  Ms. Kramper’s attempts to circumvent the severity of her threats by saying she was just “bitching” about class should not be disregarded as they were in Bell, since Ms. Kramper offered no signal as to indicate that her threats were not serious; her online speech specifically identifies the teacher, and the method proposed to injure her.  This, similar to the speech in Bell is more than just “foreshadowing something that might happen,” which was enough for the court to satisfy the identifiable threat approach.  Since a reasonable person could interpret Ms. Kramper’s speech to be a serious expression of an intent to inflict harm on Ms. Martin, this court should likewise find the identifiable threat approach is satisfied like it did in Bell.  Ultimately, Tinker applies in this case under the identifiable threat approach just as it did in Bell.

1. Kramper’s Speech Constituted a Substantial Disruption to Educational Objectives, Satisfying Tinker

Ms. Kramper’s speech satisfied the second element of Tinker since her speech was at least a foreseeable substantial disruption to the school’s safe and effective learning environment.  Under Tinker, schools may restrict speech that “might reasonably lead school authorities to forecast substantial disruption of or material interference with school activities.”  C.R. v. Eugene Sch. Dist. 4J, 835 F.3d 1142, 1150 (9th Cir. 2016), cert. denied, 137 S. Ct. 2117, (2017).  A substantial disruption will be found where the speech creates disorder that significantly and adversely impacts the delivery of instruction.  Bethlehem, 807 A.2d at 869.  But see, Tinker, 393 U.S. at 509 (the limitation of speech must be caused by more than a mere desire to avoid the discomfort and unpleasantness that accompanies an unpopular viewpoint).  Schools have an obligation to prevent the “occurrence of [classroom] disturbances” that would inhibit a teacher’s ability to teach and students’ ability to learn.  LaVine, 257 F.3d at 989.[14]  Schools do not have to wait for complete chaos to be present to limit student speech, rather, schools are encouraged to limit speech that might escalate and grow into a substantial disruption.  Bethlehem, 807 A.2d at 868.  See also, Kowalski, 652 F.3d 565 (warning of a “snowballing effect” if the school had not been permitted to intervene).

            Ms. Kramper and her peers’ involvement with the speech before, during, and after class inhibited Ms. Martin’s ability to teach and affected the learning environment; this conduct is sufficient to establish at least a foreseeable substantial disruption to the learning environment.  In Wisniewski, the court found that the participation of as little as fifteen individuals, not all of which were students, was not only enough to satisfy the foreseeability approach mentioned previously, but also enough to constitute a substantial disruption since the speech was “extensive[ly] distribut[ed]” and continued for three weeks.  Wisniewski, 494 F.3d at 39-40.  Likewise, in C.R., a group of middle school students harassed and heckled two disabled students off-campus.  C.R., 835 F.3d at 1145.  Not only did one of the victims of the student speech feel uncomfortable and unsafe, but the incident was later discussed on-campus, where school officials became concerned with how the speech might increase and affect the learning environment.  Id. at 1146-47, 1152.  The court upheld the school’s limiting the “ringleader’s” speech because a substantial disruption was at least foreseeable by the effects it had on the victim and the school environment.  Id. at 1147.

            The court should likewise find at least a foreseeable substantial disruption to exist because of Ms. Kramper’s speech like it did in Wisniewski and C.R.  Like the speech in Wisniewski, the “substantial distribution” of Ms. Kramper’s speech among her peers resulted in the constant interruption of Ms. Martin’s class and thus required her constant reprimand to maintain control.  Ten students at any given time participated in Ms. Kramper’s speech in the classroom; this mirrors the fifteen individuals found to constitute a substantial disruption in Wisniewski.  While the court in Wisniewski additionally found a substantial disruption to exist because the speech was viewable for three weeks, Ms. Kramper’s speech continued for nearly twice this amount.  Ms. Kramper’s speech reverberated through the students in Martin’s class, which was the very fear the court in C.R. had in finding a substantial disruption was at least foreseeable.  In fact, if the school officials had not limited Ms. Kramper’s speech, the clucking and disruptions may have only gotten worse as time elapsed – the very concern of the school in C.R.  Therefore, this court should side with both of these courts and grant summary judgement in favor of defendants since Ms. Kramper’s speech was extensively distributed, brought onto campus, and relentlessly disrupted not only Ms. Martin’s classroom environment but also Ms. Martin’s ability to teach.

1. CONCLUSION

            For all the foregoing reasons, summary judgement should be granted in favor of defendants the School Officials and against the plaintiff.

 

DATED this 12th day of April, 2018.

 

                                                                                                Respectfully Submitted,

 

                                                                                                        Austin Cromack

                                                                                                _________________________

 

[1]See, Home Computer Access and Internet Use – Indicators of Child and Youth Well-Being, Child Trends Data Bank, at 10 (December 2015). 

[2] See, Allie Bidwell, Report: School Crime and Violence Rise, U.S. News & World Report, (June 10, 2014), https://www.usnews.com/news/articles/2014/06/10/incidents-of-school-crime-and-violence-on-the-rise-for-students-and-teachers.

[3] See, National Center for Education Statistics: Institute of Education Sciences, Indicators of School Crime and Safety: 2016, U.S. Department of Education at iii (May 2017).

[4] See, National Center for Education Statistics: Institute of Education Sciences, Indicators of School Crime and Safety: 2016, U.S. Department of Education at iv (May 2017). https://nces.ed.gov/pubs2017/2017064.pdf.

[5] See, Madeline Will, When Students Assault Teachers, Effects Can Be Lasting, Education Week (Feb. 6, 2018). https://www.edweek.org/ew/articles/2018/02/06/when-students-assault-teachers-effects-can-be.html

[6] First Amendment protections exclude, inter alia, fighting words, certain types of defamation, incitement to imminent lawless action, true threats, obscenity, and child pornography.  See Miller v. California, 413 U.S. 15, 23 (1973).

[7] Schools may restrict other types of student speech aside from Tinker – 1) vulgar, lewd, obscene, and plainly offensive speech, Bethel Sch. Dist. No. 403 v. Fraser, 478 U.S. 675, 677 (1986); 2) school-sponsored speech, Hazelwood Sch. Dist. v. Kuhlmeier, 484 U.S. 260, 261 (1988); and 3) speech promoting illegal drug use, Morse v. Frederick, 551 U.S. 393 (2007).

[8] Courts have yet to thoroughly apply this prong of Tinker. See e.g. Philip Lee, Expanding the Schoolhouse Gate: Public Schools (K-12) and the Regulation of Cyberbullying, 2016 Utah L. Rev. 831 (2016).

[9] See, Philip Lee, Expanding the Schoolhouse Gate: Public Schools (K-12) and the Regulation of Cyberbullying, 2016 Utah L. Rev. 831 (2016) (Some courts also recognize a no authority approach. See e.g. Ala. Code § 16-28B-3 (2016); - Some courts recognize a no distinction approach. See, e.g., J.S. ex rel. Snyder v. Blue Mountain Sch. Dist., 650 F.3d 915, 926 (3d Cir. 2011). Neither approach is discussed in this brief.)

[10] In New Jersey and Illinois, a school employee’s knowledge of the content is sufficient to consider speech on-campus.  Bethlehem, 794 A.2d at 936.

[11] It must be a realistic and reasonable threat. Porter v. Ascension Par. Sch. Bd., 393 F.3d 608, 620 (5th Cir. 2004).

[12] See, John T. Wolohan, A Student’s Online Rap Threatening Coaches Not Protected Speech, Athletic Business (Nov. 2015). https://www.athleticbusiness.com/civil-actions/a-student-s-online-rap-threatening-coaches-not-protected-speech.html. (Under the identifiable threat approach, school officials can react quickly and decisively to address threats of physical violence without worrying whether they will have to face years of litigation second-guessing their judgment as to whether the threat posed a real risk of substantial disturbance).

[13] See, Bethlehem, 757 A.2d at 422 (In this day and age where school violence is becoming more commonplace, school officials are justified in taking very seriously threats against faculty and other students).  

[14] But see, Buessink ex rel Buessink v. Woodland R-IV Sch. Dist., 30 F. Supp. 2d 1175, 1177-78 (E.D. Mo. 1998) (A teacher’s distaste of student speech is not enough to limit it since there must be actual or foreseeable disruption).

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